GITMO DETAINEES MARK FIVE YEARS IN LIMBO

by William Fisher

(IPS) -- January 10 is the fifth anniversary of the arrival of the first detainees at the U.S. naval facility at Guantanamo Bay, Cuba, as a growing number of people and organizations -- from military officers and religious leaders to legal scholars and human rights groups -- are labelling the prison a black hole of injustice and demanding that it be closed.

The facility, established following the war in Afghanistan in the wake of the Sep. 11, 2001 attacks on New York City and the Pentagon, has been controversial throughout the world for alleged prisoner abuse and the absence of any meaningful process to separate genuine wrongdoers from people detained because they were in the wrong place at the wrong time.

Recently departed Defense Secretary Donald Rumsfeld repeatedly declared all the detainees "the worst of the worst." But from its peak inmate population of 773, several hundred detainees have been released -- mostly because the Defense Department concluded that they no longer represented a threat to U.S. national security. The camp currently houses more than 400 prisoners.

While the U.S. military claimed Guantanamo inmates were captured "on the battlefield" in Afghanistan, and designated by the Bush administration as enemy combatants, there is mounting evidence that a number were victims of what is known as "extraordinary rendition" -- capturing a person and sending him or her to a site recognized for practicing torture.

Pres. Bush has implicitly admitted that others, including 14 so-called "high value" prisoners said to have played significant roles in the 9/11 attacks and other terrorist acts, were sent to Guantanamo after long detentions in the CIA's "black hole" secret prisons in Afghanistan, Eastern Europe and other locations.

None of these prisoners have been tried, although ten have been charged.

Mary Shaw of Amnesty International USA, a human rights group that calls Guantanamo an "American Gulag," told IPS, "The U.S. administration chose Guantanamo as the location for this detention facility in an attempt to hold detainees beyond the reach of U.S. and international law."

"The U.S. government's own tribunals have determined that over half of those detained never committed any hostile acts against the United States," she said. "And most of those held at Guantanamo were not captured on any battlefield, but were handed over to the U.S. by others in exchange for cash rewards. Undoubtedly, this practice of paying bounties for prisoners has led to mistakes; yet for five years the U.S. government has denied that these men have the basic right to challenge their detentions."

There have also been new disclosures of prisoner abuse and violations of the Geneva Conventions, mostly stemming from written communications from U.S. federal agents who witnessed "cruel, inhuman and degrading" prisoner treatment and interrogation and reported it to their superiors, including leaving detainees shackled in foetal positions on the floor for 24 hours or more.

There have been three suicides among prisoners and hundreds have been force-fed to keep them alive during intermittent hunger strikes. The Defense Department (DoD) has acknowledged 41 suicide attempts among 29 prisoners.

In January 2005, the New York Times reported that there had been 350 incidents of "self-harm" in 2003. Of those, 120 were attempts by prisoners to hang themselves. Twenty-three prisoners participated in a simultaneous mass-suicide attempt.

President Bush has said he would like to close the facility, but the U.S. military has recently completed construction of new buildings to house cellblocks.

Among the most widespread criticisms of Guantanamo is the system set up by the Bush administration for adjudicating individual cases.

That process began with the establishment of CSRTs -- Combatant Status Review Tribunals -- in July 2004, more than two years after most detainees were imprisoned there. The CSRTs, while deeply flawed according to many military and civilian legal authorities, have been responsible for the release of some prisoners. In some cases, they concluded that the detainees had been captured by Afghan militias, Pakistani border guards and other surrogates, and some had been turned in for bounties, intelligence officials have said.

But the CSRT process itself proved to be ineffective, and information obtained by coercion was allowed to be admitted as evidence. Midlevel officers -- not military lawyers -- were ordered to help detainees prepare for their hearings.

Lawyers for detainees contended that the military placed insurmountable obstacles to their defense. For example, more than a week after a hearing for a Pakistani businessman accused of ties to al Qaeda, a civilian lawyer who had been trying to help him said he had not been advized of the hearing.

Amidst growing international criticism, the Bush administration in May 2004 set up an annual parole system, called Administrative Review Boards, to assess whether a detainee represented a continuing threat or had intelligence value.

But before those hearings ever began, the Supreme Court ruled that the Bush administration must conduct a one-time review of all Guantanamo detainees using the sort of panels called for by Army regulations -- and by the Geneva Conventions. This year's round of parole-type review hearings ended last month. Most of the detainees eligible to appear at these hearings have reportedly stopped trying because of the perceived bias in the procedure and the haste with which hearings are carried out.

Meanwhile, in an effort to restrain President Bush from claiming inherent powers to determine what constituted cruel or inhumane treatment of prisoners, Congress passed the Detainee Treatment Act. The president signed the bill into law, but at the same time issued a "signing statement" that essentially claimed that the commander-in-chief could disregard the law when he deemed it not in the national interest to do so.

Last year, the Supreme Court also played a pivotal role in rejecting President Bush's assertion that his commander-in-chief authority gave him inherent power to establish military commissions to try Guantanamo detainees.

In response to the Jun. 29 ruling, Congress quickly passed the United States Military Commissions Act (MCA) of 2006, signed by Bush in October, whose stated purpose was to "facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes."

Under the MCA, the Bush administration and the U.S. Congress retroactively shielded from prosecution those who may have been involved in illegal detention, torture and rendition.

Several influential U.S. senators agreed to the administration's "alternative" definitions of torture, which essentially meant that torture techniques could continue to be used by the U.S. military, the CIA, and contract employees. Attempts by the Senate Judiciary Committee to preserve the rights of habeas corpus hearings for detainees also failed.

Headlined by these and other lawmakers as a "compromise" with the president, the MCA essentially gave the administration all the powers it had claimed previously, as well as a few others. Congress allowed the president to prevent prisoners from appealing to the U.S. courts, and immunized government personnel from prosecution for all but the most serious abuses.

The new Democratic Party-controlled Congress is reportedly considering whether to challenge the suspension of habeas corpus hearings for detainees.

The Bush administration claims it plans to charge up to 70 Guantanamo detainees in the military commissions authorized by the MCA. But legal experts point out that this still leaves more than 300 men held in Guantanamo without charge and without any clear explanation of what they are accused of doing.

Amidst the continuing uncertainty about this and other issues at Guantanamo, pressure for its closure is likely only to increase over time.